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U.S. Citizenship and Immigration Services has published an advance copy of a proposed rule that will introduce reforms to the selection process for H-1B cap petitions. The proposed rule is scheduled to be published in the Federal Register on Monday, commencing a 30-day public comment period.
Online preregistration system. The proposed rule would create a mandatory preregistration system requiring employers who intend to file H-1B cap petitions to submit an online registration for each intended beneficiary petition during a designated registration period before April 1. USCIS would then conduct a lottery and select enough registrations to meet the H-1B cap numbers. According to the proposal, petitioners could therefore wait until they know a petition has been selected before filing the Labor Condition Application and the full H-1B petition.
Selection process. The proposed rule would reverse the order in which H-1B cap petitions are selected for adjudication. Under the current process, USCIS first determines if there is a sufficient number of petitions to reach the 20,000 advanced-degree exemption and conducts a random lottery on that population first, then adds unselected petitions to the second pool and conducts a lottery for the regular cap of 65,000.
Suspension clause. The proposed rule would allow USCIS to temporarily suspend the registration process during any fiscal year due to technical challenges with the registration process and/or the new online registration system.
BAL Analysis: The pre-publication version of the proposed rule contains changes to the H-1B lottery process that were included in the agency’s agenda in October. USCIS is working to implement the regulation and the necessary electronic registration system in time for the coming H-1B cap season, but acknowledged in the proposal that it may suspend the registration procedures. The proposed rule is expected to be published in the Federal Register on Monday. Employers and other immigration stakeholders are encouraged to submit public comments to the agency during the comment period that will open Dec. 3 and close Jan. 2.
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